Mogadishu Express

Government of Laws not Men

By Heikal I. Kenneded

November 23, 2004

The great maxim goes on to say “the truth that is suppressed by friends is the deadliest weapon of the enemy.”  A just country can support only a just society; therefore, the rule of law must come before anything else that comes out of the peace process. Much lip service has been paid to the "rule of law" early in the Mbagathi peace process, spearheaded primarily by Professor Abdi Samatar and like-minded civic society with the intent to instill some civility in the dark minds of the warlords.  However, the rule of law should be the very core of any new government formed in the process.  Its principle should dictate that we have a government of laws, not men.  This means that no man is above the law and that the law restrains government itself.  The law is not an end in itself, but a necessary means to preserve our liberties.  For instance, if the president happens to be a man of lesser virtue, then the rule of law has to restrain him so that he has no authority to wield his executive power arbitrarily and capriciously.  However, laws don't work, “unless they merely codify generally accepted behavior,” in which case they are probably unnecessary.  Thus experience should teach us the rule of law alone could save our society from any decree by utter brute power however disguised.  Unless we wish to prolong our notorious “failed state” status that we have been depicted all around the world, we need to start governing by the rule of law. 

The current Somali peace process underway in Mbagathi, Nairobi, is finally moving ahead with some tangible developments.  Despite the expectations brought by this long-overdue peace process, the warlords are trying to undermine every chance of a successful outcome.  Equipped with their plundered wealth and with the backing of over-drugged gangster soldiers, they are dedicated to the persistence of the anarchy and the lack of the rule of law in Somalia.  In effect, throughout our country, human rights violations remain endemic, including murder, looting, destruction of property, child soldiering, kidnapping, oppression of minorities, and denial of due process by local authorities.  The only solution to such dire and rampant violations of human rights and the hope of restoring law and order to our country, where the AK-47 remains the ultimate authority, is the implementation of the rule of law.

The basic idea of the rule of law is rather multifaceted and comprehensive.  First, the rule of law is the course by which human activities can be governed and is indispensable to a secular and democratic society like ours.  Second, under the rule of law, the principal driving force of the legal system is to direct and restrict the actions of government officials. There must be laws regulating the authority of the government, and its officials’ behavior must comply with legal rules.  Moreover, these laws should clearly outline the constitutional functions of the government.  Third, the rule of law inevitably assumes the existence of rights.  The law should sustain the diverse rights that modern concepts of citizenship demand.  When the government violates its power, citizens should have the right to bring suit against the government.  Since the standing of the individual citizen is weak in comparison to the power of the state, citizens require legal protection against government infringement and disenfranchisement.  Fourth, judicial independence is critical to the rule of law.  Under the rule of law, judges should recognize that the courts are the forums of last remedy to which the citizens turn to resolve their disagreements with each other or with the government.  Judges are the final guardians of the rights of citizens.  If this final remedy of judicial recourse fails to execute its task, or if these forums of last remedy are abused, the country deteriorates into anarchy.  Because of their enormous significance, society should not uncomplainingly bear the blunders or indiscretion of its judges.  In other words, the rule of law is actually the rule of the courts.

Gangster State

Because of our ethnic, religious and cultural homogeneity, Somalia is the only political entity on the African continent that is a “nation” in the real sense of the word.  Yet we are “atomized across the fault line of clan.” Contrary to this situation, throughout the world Somalia has been depicted as a textbook example of a “Gangster State.” There is no doubt that the political and social failures of our state stem mainly from the lack of a proper constitution that maintains the responsibilities of civic duty among all men.  Since our country’s independence, our governments were mainly made up of men, virtually at every level; in effect, we have collectively witnessed the dreads of tyranny and various degrees of chaos.  Since the overthrow of the brutal regime of Siad Barre by the USC militia, our country has been in turmoil due to civil war, chaos, anarchy, bloodshed, horror, barbarism and devastation in the highest degree.  All of these have proven to the rest of the world that in Somalia the rule of law is not worth the paper that it is printed on because tribalism and warlordism prevails over all else. 

It is understandable that our tribal society has never instituted or implemented any governing constitution relevant throughout the country because we could never protest our leaders' subversion of the law. We have lived all along not under the rule of legitimate authority, but under the rule of clans.  The habit we have fallen into of allowing some tribal leaders to single-handedly create chaos, in deliberate violation of international human rights, undermines the rule of law, which is the fundamental keystone of any civilized society.  The intriguing question that anyone in his/her right mind might ask is: why would anyone put up with machine guns and roadblocks laid by unrepresentative warlords supported by a bunch of gangsters?  The fact of the matter is the shameless motives of these warlords for obstructing the peace process, simply stem from the fact that they do not wish to see their rampant acquisition of wealth and power be proscribed by a Somali government presiding over the rule of law.  Because in the presence of a firm rule of law, these warlords will no longer be allowed to dictate to our country, to regional authorities, and to the majority of peace-loving Somalis.  And if so clearly understood by all, then peace and restoration of nationhood to Somalia is not that far off.  But can we never do anything of the status quo? That which we have done for decades is also inaction.  Once we realize that the status quo is stagnant, we can then compare its discernable advantages and disadvantages with the predicted outcome of inaction.  On the basis of such analysis, we can then make the rational decision of choosing the path for a just and democratic society. 

Instituting the rule of law will entail a two-step process, regarding: (1) bringing to justice those implicated in human rights abuses throughout the country and (2) reestablishing the justice system to institute law and order and protect the rights of all citizens.  It will first be crucial to dismantle and disband the various warlord territorial systems that have been used to control the country, while dissolving or otherwise administering their forces to ensure they do not become "spoilers" to the transition.  The Islamic courts should also be immediately abolished.  Implementing an effective rule of law strategy will also require close collaboration with the local authorities, religious leaders and citizens. It is has been argued in some circles that any clan-based societies like ours are "incapable of enforcing its laws;" therefore, they claim, "the state is no longer adequate to all, and therefore ceases to exist."  Nevertheless, while this theory appeals to some, legally or otherwise, it holds no water.  Under the law, lack of proper enforcement of existing laws does not constitute that they shouldn't be followed; it doesn't mean that anyone or any entity, which neither likes nor cares about the existing laws, can randomly enact new laws.  In fact and in spirit, it is given and negotiated among law-abiding citizens that laws will always be on the books, until they are properly appealed or amended by the proper authorities with the proper jurisdiction. All reasonable men empathize that the rule of law is what distinguishes civilized men from the uncivilized, law-abiding citizens from criminals.

Unfortunately, the course of action that is being pursued in the current Mbagathi peace process is mainly focused on choosing the right number of seats for every tribe, instead of trying to install a concrete rule of law, which is impregnable to corruption and chaos.  It may be true that we need more honest men in the seat of the presidency and the parliament, but it may also be true that we need stricter laws and additional enforcement of all civic duties.  It is now obvious the solution of our dilemma is rooted in the implementation of the rule of law.  It is essential that the civic society desist from the obstructionist attitude of the warlords of undermining the efforts to achieve peace.  It would be absolutely unacceptable to allow the success of reconciliation to depend on the caprices of these warlords. The first step for the new government should be to break the cycle of impunity for those who commit criminal acts of violence.  Thus, it must provide our long suffering society with security, stability, personal safety, and the undertaking that transparent law enforcement and judicial processes present the same protections and penalties for all citizens.  Such new government will need the help of the international community in undertaking this task. The international community has to make instant advancement in this area; without it, the success of any new government will be endangered by a loss of credibility and an entrenchment of wanton crimes, extra-judicial processes, and terrorist activities.

It is evident in the recent dramatic arrest of faction leader Hussein Aideed in Nairobi on charges of reneging on a business deal with a Kenyan businessman how perishable is the bubble power of these warlords against an effective rule of law.  Hussein Aideed who never stood before a court of law for the crimes committed by his militia’s wanton human rights abuses of deliberately and arbitrarily killing women and children throughout the Bay regions, seemed very vulnerable and panicky during his arraignment.  He has been under the illusion of being above the rule of law, but this recent incident was a major blow to his grand delusion of being immune to future criminal charges committed against humanity.

Separation of Religion from State

By the fall of the Siad Barre regime, no civil courts were functioning in Somalia because the three-tier national judicial system based on the 1962 Criminal Code could not be implemented in effect of the pervasive chaos throughout the country. Although local authorities have attempted to oversee some type of justice, few Somalis felt secure from retaliation based on clan loyalties.  Thus the void created by the lack of a functioning government aided the development of the role of Islamic courts. In the past, many of these Islamic courts were used to settle property disputes; however, they are now increasingly adjudicating criminal cases.  Currently, the Islamic courts are applying a very strict interpretation of the Shari'a law and rendering verdicts.  In fact, these unceremonious courts are not uniform and do not provide for procedural safeguards, which comply with accepted international standards for a fair trial.  For instance, the right to appeal the verdict of the Islamic courts does not exist and defendants often do not get proper legal counsel.

As a result, both national and international human rights organizations have observed serious violations of human rights principles and international law during the implementation of the extension of Sharia law to specific criminal cases. Thus, it is imperative that our constitution should be based in the separation of the State from Religion. Many religious people will argue that such an idea is anathema to our Islamic religion, but I tend to differ and believe that religion has no place in the circles of politics.  In a democratic and secular society, it is crucial to break away from domination by religion and religious leaders.  The fact that a practical separation of politics and religion in Islam is reasonable is based on the idea that no human being can rightly judge another as being a "sinner."  Such judgement is made exclusive to God, because only God has the knowledge of what lies in the deepest of one’s soul.  Since society has no place on judging a person like that, this means that they also cannot judge a political leader like that, thus leading to the principle that the community of believers should accept the authority of any leader, even if he appears unjust.

The values of our religion should definitely be included in making the rules of law.  Certain restrictions, however, should be made to the Sharia law, such as the stoning of adulterers and the amputation of the limbs of those who steal.  These laws should be regarded as sheer laws of the society at a certain time, so that there would be no reason to institute by such dated laws today because of their inherent cruelty.  In fact, by allowing such strict Sharia laws to coexist within our secular constitutional framework, we will be shortchanging our basic human rights and marching self-crippled into the 21st century.  Thus, a separation of State and Religion should be a prerequisite for ending the pervasive human rights violations in our country.

While there have been numerous debates on the issue of the separation of the State and Islam, there has never been a comprehensive case-by-case critique of the Somali State.  Hence, all of the gritty details must be exposed and articulated in a way that is accessible and intelligible to the average citizen before the religious fanatics impose their will on society.  If at the end we cannot succeed in determining what role religion should play in our constitution, at least we can attempt to deter any future abuses of interpretation of religion by the religious leaders. State laws from Hammurabi’s Code to contemporary international establishments have all been designed for the governing of nations and the decentralization of power among institutions. Distraction from the rule of law will only perpetuate social failures, tyranny, and a failed state such as ours.  Finally, the international community has the important role of supporting the peace process, and fostering the establishment of the rule of law and the creation of independent national, political and judicial institutions in Somalia.

Godspeed to form a viable, legitimate and representative Somali government.

Heikal I. Kenneded

Washington, D.C.

KennededH@state.gov